Monday, 22 March 2010

"The main areas of concern are that the right of the creator of an artistic work to determine where and how that work should be used has been removed under what is now Clause 43 of the bill.

In our industry we have been aware for some time of the need to free up works currently held in museums and other public bodies. We believe it is right that the public should have access to images for non commercial use under a sound arrangement for handling the ‘orphaned’ works.

But we are also aware that many images currently in circulation, which form the livelihood of photographers and their agencies, may also be scooped into the category ‘orphan’. I am a specialist in metadata – the data which accompanies an image – and I know that it is only in the past couple of years that photographers and agencies have acquired the know how and technology to consistently add data to the digital image file so the copyright information is with the image. We are all aware also that many technologies currently strip that data from the image, leaving them orphaned.

There have been many arguments around this matter, but we know that images in UK publications are often not credited, and that publishers (particularly newspapers) have habitually used images without permission, leaving hard pressed agencies and photographers to spend time and money reviewing publications on a daily basis so they can ask for payment. This is not a climate where we can contemplate the mass orphaning of our works. The freeingup of orphaned works should be restricted to non-commercial uses.

Worse still, the bill proposes that all works should be freed up for collective licensing, which means photographers and their agencies would potentially lose control of how any of their images are used. This is supposed to be a balancing act, enabling easier use of images by publishers. But the dangers of this approach are enormous. Not only would the photographers lose the right to control use of their own work, but so would the models (who may be children), and any organisations or companies portrayed in the image. There are many layers of permission in an image – model rights, other layers of copyright, geographical restrictions, use restrictions and so on. To remove control of these rights from photographers and the agencies they contract to licence their works is to open the doors to a free –for-all that could wreck the basis of the image licensing industry.

The image industry woke up many years ago to the need to make licensing easier for legitimate users. The number of different licensing models is evidence that ease of use for image buyers is a driver for change – sometimes to the detriment of the individual creator. But the photographer has the choice of where to place his or her images, and can make that judgement based on the image, the subject matter, permissions, and the wishes of the photographer.

I am well aware that there is a planned ‘opt out’ clause for this legislation, but I would ask the question why this legislation has been proposed in the first place. How would we feel if laws were passed on other subjects where what we thought were our rights were suddenly subject to an opt out clause.

The laws of copyright, hard fought for, are the bedrock of this creative industry. The UK has a world reputation for creativity in photography., we have more specialist photographic agencies than anywhere else in the world, many of them run by committed photographers in specialist knowledge areas. We contribute enormously to the communications industry. New technology is putting many creators and their agencies under enormous pressure, with changes to working practices happening every day. To allow the conditions for sale of our product to be dictated by organisations appointed by the government, whatever their make-up and origin, would be a retrograde step that could squeeze the creativity out of our industry altogether.

As many have remarked, the complexities in the Digital Economy Bill are such that a wash-up would be insulting to the industries involved. There are sweeping powers in the bill which rely on secondary legislation in what seems to be a most undemocratic way. I am asking you to take account of the concerns of the photographic industry, and to prevent this from happening.

I would like to ask you to vote against the bill in its current form. "

At last, creators' organisations are pulling together. A new site has been created Stop 43. It has a direct approach - lets stop this bill before it wrecks our industry. The site is supported by EPUK, AOP, Copyright Action, Photographers Agents London, and pro-imaging.

The site visually demonstrates what might happen if the bill is passed (your favourite horse image used on a can of horsemeat), and shows you how to write to your MP.

Saturday, 6 March 2010

How did we find ourselves in this fix?The Digital Economy Bill is shooting through Parliament in what has been described on the CRA (Creators Rights Alliance) web site as ‘an appallingly rushed process.’

The bill introduces legislation to enable the licensing of orphan works by authorised bodies, and Extended Collective Licensingprovision which would give collecting societies the right to license other copyrighted works as well. (See my previous blog)

While amendments have specified that copyright holders will have the right to opt out of these arrangements, the fact remains that control of the use of works will be removed from the rightsholder. The ‘balance’ promoted by the IPO willtake rights away from creators in favour of the users of the works (the publishing industry.)

Taken together, these provisions amount to wholesale attack on the right of the creator to decide how his or her works are licensed.

Strange. I remember being involved in the pre-bill consultation last year, and the view from creators’ organisations was that there was nothing wrong with copyright law as such. It was the ability to protect those rights that needed to be improved.

To illustrate what we are up against, here is a quote from Lord Lucas on 8 February during debate in the Lords. "We are coming up against what will prove to be impossible over the next decade or two: maintaining the idea that the copyright owner has control rather than a right to remuneration. I do not see how control stands in the internet age.”

Those of us who are creators or their representatives need to ask ourselves whether we agree with this statement. Do we want to give up control over the way our works are licensed? If there are areas where it is beneficial to creators to look at collective licensing, is the Digital Economy Bill as it stands the best way to take a considered view on how licensing may look in the future?

Lord Clement Jones commented on the same day 'It is one thing to have an extended licensing scheme for a body that already has a particular work that it needs to exploit in different formats over time and another to have a completely new work over which it tries to acquire rights through this process.'

The fear is that organisations which have access to works will try to take control of the licensing without recourse to the creators themselves.

On Feb 8 Lord Clement Jones said ‘We know that there will be a problem in the other place, where Members will not have time to debate the issues. We will have what is traditionally called the wash-up at the other end.’

This means legislation will be rushed through in The Commons in advance of a May 6 election,by people who do not know our industry and have no time to think about the issues involved.

Photographic organisations have been mobilising. The IPO held a meeting last Friday to discuss their major concerns. A report of this meeting ‘IPO meeting stalemate’ can be found on Copyrightaction.com, run by EPUK (Editorial Photographers UK) along with their position statement on the bill.

BAPLA has issued a statement which calls for orphan works to be released for non-commercial use only, and for safeguards on moral rights and metadata.

Rights organisations are asking, at the very least, for enforceable moral rights, attribution of works, and protection of metadata. These things are strongly opposed by what the IPO calls other stakeholders - publishers in other words.

The Periodical Publishers Association (the PPA) issued a statement in September last year opposing any change in the law on moral rights. At present moral rights, which include the right to accreditation, have to be 'asserted'. Creators organisations are calling for a default position with automatic moral rights.

The photographic industry is reacting to a bill which drives a cart and horses through the rights of creators in order (it would appear) to appease the publishing industry. Despite recent promises of consultation for the setting up of the orphan works and extended licensing schemes, the process appears to be profoundly opaque and undemocratic.

The Collective Licensing provision is vague. What kind of licensing will be enabled under this provision? Who will decide? Many more questions need to be asked and answered before it is safe to give the go ahead to any such schemes.

With the bill brewing dangerously before Christmas, it was surprising how little reaction was to be found online. In an interview with BJP the AOP tried to reassure photographers that 'We have the ear of the IPO', and statements from other organisations were also vague. Lobbying was going on.

Now things have reached a critical point. The AOP said recently in the BJP ‘We feel everyone should be aware that should the bill pass in its current form any creative work, including photography, is potentially open to political, social, religious or commercial gain by anyone; if the creator of that work cannot be easily identified and traced.' (BJP-online) The AOP views on the best way forward are set out here.

DACs is the collecting society positioned to license photographic works in an Extended Licensing Scheme. Such are the fears, that DACs (BJP online 5 March) has moved to reassure creators that it is not in the business of licensing in rightsholders' primary markets. Creators may well feel that any such reassurances are flimsy in the face of the powers being dished out by the bill in its current form. Perhaps the AOP, which is represented on the board of DACs, can throw more light on this matter.

An election will be called very soon.Even the helpful amendments proposed may not make it onto the statute book. The thought that our industry may be the victim of a ‘wash-up’ should stir us to action.

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About Me

I am a consultant in image and data management. My company, Electric Lane, advises and trains clients on image management issues, including digital image quality and standards, image archiving, sales and retrieval and metadata and keywording. New services include automated image and metadata handling and controlled vocabulary creation. I have been active in the stock image industry for over 20 years and represent stock industry associations BAPLA and CEPIC on the IPTC Photometadata Committee.